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Imperium in Imperio

Philip Hamburger on how government regulations have ushered in a new deep state
June 12, 2017

According to Philip Hamburger, author of The Administrative Threat, we’re being governed by unelected experts in ways concerningly reminiscent of the 17th century British monarchy. Our increasingly complex world has given the government justification for unlawful agency delegation, Hamburger claims, and those agencies act as a  “government within the government, [assuming] powers once claimed only by kings.” In a new Wall Street Journal interview with John Tierney, Hamburger shows how this state is evident in everything from the EPA to Title IX.

“Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution, says Mr. Hamburger, 60, a constitutional scholar and winner of the Manhattan Institute’s Hayek Prize last year for his scholarly 2014 book, “Is Administrative Law Unlawful?” (Spoiler alert: Yes.)

“Essentially, much of the Bill of Rights has been gutted,” he says, sitting in his office at Columbia Law School. “The government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.” ​

In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. “The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says. “Ultimately this is not about the politics of left or right. Unlawful government power should worry everybody.”

Read the full article here.

In this Article

The Administrative Threat

Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal lives. As a result, administrative power is a pervasive feature of American life. But is this power constitutional?

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